Citation Nr: 0903135
Decision Date: 01/29/09 Archive Date: 02/09/09
DOCKET NO. 07-27 527 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to service connection for a right index
finger disability.
2. Entitlement to service connection for residuals of a
myocardial infarction.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The appellant served on active duty from February 20, 1960 to
August 19, 1960. Thereafter, the appellant served in the
Army National Guard from June 1, 1975 to April 21, 1994.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma. In November 2008, the appellant
testified at a Travel Board hearing before the undersigned.
FINDINGS OF FACT
1. The appellant had a right index finger fracture in 1959,
prior to entering active duty service in 1960, and it did not
worsen during his period of active service.
2. The appellant had the same preexisting right index finger
fracture when he entered into and then served in the National
Guard from June 1, 1975 to April 21, 1994, and it did not
worsen during that period.
3. Heart disease was not manifest during active duty service
in 1960 or within one year of separation thereof.
4. Heart disease was not manifest during active duty for
training service in the National Guard.
5. The appellant did not suffer a myocardial infarction
while on active duty for training or inactive duty for
training service in the National Guard.
CONCLUSIONS OF LAW
1. A right index finger fracture clearly and unmistakably
preexisted active duty service from February 20, 1960 to
August 19, 1960, and was not aggravated by such service, and
the presumption of soundness at entry is rebutted. 38
U.S.C.A. § 1111 (West 2002 & Supp. 2008).
2. A right index finger disability was not incurred in or
aggravated by active duty service from February 20, 1960 to
August 19, 1960. 38 U.S.C.A. §§ 101, 1111, 1131, 1153 (West
2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2008).
3. A right index finger disability was not incurred or
aggravated by Army National Guard service from June 1, 1975
to April 21, 1994. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008).
4. Heart disease was not incurred in or aggravated by active
duty service from February 20, 1960 to August 19, 1960, and
may not be presumed to have been incurred therein; it was not
incurred or aggravated during active duty training; a
myocardial infarction was not incurred during inactive duty
training. 38 U.S.C.A. §§ 101, 106, 1101, 1112, 1113, 1131,
1137 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Prior to the initial adjudication of the claimant's claim, a
letter dated in January 2007 fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The claimant was aware that it was ultimately the
claimant's responsibility to give VA any evidence pertaining
to the claim. The VCAA letter told the claimant to provide
any relevant evidence in the claimant's possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). ). In particular, the VCAA notification:
(1) informed the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) informed the claimant about the information and evidence
that VA will seek to provide; and (3) informed the claimant
about the information and evidence that the claimant is
expected to provide.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a statement of the case (SOC)
or supplemental statement of the case (SSOC) can constitute a
"readjudication decision" that complies with all applicable
due process and notification requirements if adequate VCAA
notice is provided prior to the SOC or SSOC. See Mayfield v.
Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007)
(Mayfield III). As a matter of law, the provision of
adequate VCAA notice prior to a readjudication "cures" any
timing problem associated with inadequate notice or the lack
of notice prior to an initial adjudication. See Mayfield
III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-
34).
In any event, the Board finds that any deficiency in the
notice to the claimant or the timing of these notices is
harmless error. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006) (finding that the Board erred by relying on
various post-decisional documents to conclude that adequate
38 U.S.C.A. § 5103(a) notice had been provided to the
claimant, the United States Court of Appeals for Veterans
Claims (Court) found that the evidence established that the
claimant was afforded a meaningful opportunity to participate
in the adjudication of the claim, and found that the error
was harmless, as the Board has done in this case.)
In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal
Circuit held that any error by VA in providing the notice
required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1)
is presumed prejudicial, and that once an error is identified
as to any of the four notice elements the burden shifts to VA
to demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant, see Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrate an awareness of
what was necessary to substantiate his or her claim.")
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007));
(2) that a reasonable person could be expected to understand
from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. Sanders, 487 F.3d
at 889. Additionally, consideration also should be given to
"whether the post-adjudicatory notice and opportunity to
develop the case that is provided during the extensive
administrative appellate proceedings leading to the final
Board decision and final Agency adjudication of the claim ...
served to render any pre-adjudicatory section 5103(a) notice
error non-prejudicial." Vazquez-Flores.
If any notice deficiency is present in this case, the Board
finds that the presumption of prejudice on VA's part has been
rebutted in this case by the following: (1) based on the
communications sent to the claimant over the course of this
appeal, the claimant clearly has actual knowledge of the
evidence the claimant is required to submit in this case; and
(2) based on the claimant's contentions as well as the
communications provided to the claimant by VA, it is
reasonable to expect that the claimant understands what was
needed to prevail. See Sanders; see also Simmons v.
Nicholson, 487 F. 3d 892 (2007).
VA also fulfilled its duty to obtain all relevant evidence
with respect to the issue on appeal. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. The claimant's service treatment records,
VA medical treatment records, and identified private medical
records have been obtained, to the extent available.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The service
treatment records from the claimant's period of active duty
from February 20, 1960 to August 19, 1960, are not in the
claims file. Since all of the claimant's service treatment
records have been requested and received, it appears that
these records are unavailable. However, the claimant's
records from his National Guard service are contained in the
claims file. It is during this service and not the active
duty service in 1960 that the claimant asserts his
disabilities were incurred.
There is no indication in the record that any additional
evidence, relevant to the issue decided herein, is available
and not part of the claims file. The records satisfy
38 C.F.R. § 3.326.
The Board also finds that a VA examination is not necessary
to determine whether a right index finger disability or a
heart disability is related to his period of honorable
service, as the standards of the recent decision of the
United States Court of Appeals for Veterans Claims (Court) in
McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been
met. Under McLendon, VA must provide a medical examination
in a service connection claim when there is (1) competent
evidence of a current disability or persistent or recurrent
symptoms of a disability, and (2) evidence establishing that
an event, injury, or disease occurred in service or
establishing certain diseases manifesting during an
applicable presumptive period for which the claimant
qualifies, and (3) an indication that the disability or
persistent or recurrent symptoms of a disability may be
associated with the veteran's service or with another
service-connected disability, but (4) insufficient competent
medical evidence on file for the VA to make a decision on the
claim. Id at 81.
With regard to a right index finger disability, that
disability preexisted service and was not aggravated therein
for the period of active duty. With regard to the
appellant's National Guard duty, there also was no
aggravation. Thus, there is no need for a current
examination as the inservice records are sufficient to
determine if there was aggravation during service. In light
of these findings, the criteria of McLendon have not been
met. Accordingly, the Board finds that no further action is
necessary to meet the requirements of the VCAA or the Court.
In this case, with regard to heart disability, as to active
duty, elements two and three are not met nor does the
appellant assert that heart disease was a result of that
period of service. As set forth below, the appellant
suffered a heart attack after he was no longer on any kind of
duty status. Although the appellant asserts that he suffered
a heart attack while on active or inactive duty training, the
evidence shows otherwise. There is no evidence of heart
disease during active duty training so elements two and three
are not met as to that matter. Accordingly, the Board finds
that no further action is necessary to meet the requirements
of the VCAA or the Court.
Since the Board has concluded that the preponderance of the
evidence is against the claim of service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot, and no
further notice is needed. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).
In summary, the Board finds that "it is difficult to discern
what additional guidance VA could have provided to the
veteran regarding what further evidence he should submit to
substantiate his claim." Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc) (observing that "the VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims."); Reyes v. Brown, 7 Vet. App. 113,
116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(both observing circumstances as to when a remand would not
result in any significant benefit to the claimant).
Competency and Credibility
The appellant can attest to factual matters of which he had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). However, the appellant as a lay
person has not been shown to be capable of making medical
conclusions, thus, his statements regarding causation are not
competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Competent medical evidence means evidence provided
by a person who is qualified through education, training or
experience to offer medical diagnoses, statements or
opinions. See Duenas v. Principi, 18 Vet. App. 512, 520
(2004). A layperson is generally not capable of opining on
matters requiring medical knowledge. Routen v. Brown, 10
Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet.
App. 124, 127 (1998). Thus, while the appellant is competent
to report what comes to him through his senses, he does not
have medical expertise. See Layno v. Brown, 6 Vet. App. 465
(1994).
However, the Federal Circuit has held that lay evidence is
one type of evidence that must be considered and competent
lay evidence can be sufficient in and of itself. The Board,
however, retains the discretion to make credibility
determinations and otherwise weigh the evidence submitted,
including lay evidence. See Buchanan v. Nicholson, 451 F.3d
1331, 1335 (Fed. Cir. 2006). This would include weighing the
absence of contemporary medical evidence against lay
statements.
In Barr v. Nicholson, 21 Vet. App. 303 (2007), the United
States Court of Appeals for Veterans Claims (Court) indicated
that varicose veins was a condition involving "veins that
are unnaturally distended or abnormally swollen and
tortuous." Such symptomatology, the Court concluded, was
observable and identifiable by lay people. Because varicose
veins "may be diagnosed by their unique and readily
identifiable features, the presence of varicose veins was not
a determination 'medical in nature' and was capable of lay
observation." Thus, the veteran's lay testimony regarding
varicose vein symptomatology in service represented competent
evidence.
In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007),
the Federal Circuit determined that lay evidence can be
competent and sufficient to establish a diagnosis of a
condition when (1) a layperson is competent to identify the
medical condition (noting that sometimes the layperson will
be competent to identify the condition where the condition is
simple, for example a broken leg, and sometimes not, for
example, a form of cancer), (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional. The relevance of lay evidence is not
limited to the third situation, but extends to the first two
as well. Whether lay evidence is competent and sufficient in
a particular case is a fact issue.
However, although the appellant is competent in certain
situations to provide a diagnosis of a simple condition such
as a broken leg or varicose veins, the veteran is not
competent to provide evidence as to more complex medical
questions. See Woehlaert v. Nicholson, 21 Vet. App. 456
(2007).
Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted")). See Barr.
The issue does not involve simple diagnoses. See Jandreau;
see also Woehlaert. The appellant is not competent to
provide more than simple medical observations. The current
diagnoses may not be diagnosed via lay observation alone and
the appellant is not competent to provide a complex medical
opinion regarding the etiology of the claimed disability.
See Barr. Thus, the appellant's lay assertions are not
competent or sufficient.
Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304.
In addition, valvular heart disease will be presumed to have
been incurred in service if it had become manifest to a
degree of 10 percent or more within one year of the
appellant's separation from service. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309.
Service connection may be granted for disability resulting
from disease or injury incurred during active duty for
training (ADT), or injuries suffered during inactive duty
training (IDT) to include when a cardiac arrest or a
cerebrovascular accident occurs during such training. See 38
U.S.C.A. §§ 101(24), 106.
Reserve and National Guard service generally means ADT and
IDT. ADT is full time duty for training purposes performed
by Reservists and National Guardsmen pursuant to 32 U.S.C.A.
§§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38
C.F.R. § 3.6(c). Basically, this refers to the two weeks of
annual training, sometimes referred to as "summer camp,"
that each Reservist or National Guardsman must perform each
year. It can also refer to the Reservist's or Guardsman's
initial period of training.
IDT includes duty, other than full-time duty, performed for
training purposes by Reservists and National Guardsmen
pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38
U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this
refers to the twelve four-hour weekend drills that each
Reservist or National Guardsman must perform each year.
These drills are deemed to be part-time training.
Generally, an individual who has only Reserve or National
Guard service (ADT or IDT with no active duty) is not a
veteran as legally defined. In the service connection
context, for example, this means that the presumption of
soundness upon entry into service and the presumptive service
connection provisions of 38 C.F.R. § 3.307, applicable to
active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§
1111, 1112, 1137; 38 C.F.R. § 3.307. Thus, service
connection on a presumptive basis is not available where the
only service performed is ADT or IDT. See Biggins v.
Derwinski, 1 Vet. App. 474, 476-78 (1991).
Further, VA regulation provides that, with chronic disease
shown as such in service (or within an applicable presumptive
period under section 3.307) so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of an evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R. 38
C.F.R. § 3.303(b).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1994).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the appellant prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
To do so, the Board must assess the credibility and weight of
all the evidence, including the medical evidence, to
determine its probative value, accounting for evidence that
it finds to be persuasive or unpersuasive, and providing
reasons for rejecting any evidence favorable to the
appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).
Service Treatment Records
The appellant's service treatment records from his period of
active duty are not of record. As noted, all service
treatment records have been requested, so these records are
unavailable for review.
Under such circumstances, the Court has held that there is a
heightened obligation on the part of VA to explain findings
and conclusions and to consider carefully the benefit of the
doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548
(1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).
It is further noted, however, that the case law does not
lower the legal standard for proving a claim for service
connection, but rather increases the Board's obligation to
evaluate and discuss in its decision all of the evidence that
may be favorable to the claimant. See Russo v. Brown, 9 Vet.
App. 46 (1996). Moreover, there is no presumption, either in
favor of the claimant or against VA, arising from missing
records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18
(2005) (the Court declined to apply an "adverse
presumption" where records have been lost or destroyed while
in Government control which would have required VA to
disprove a claimant's allegation of injury or disease in
service in these particular cases).
Fractured Right Index Finger
The appellant's National Guard records show that on
enlistment examination in June 1973, it was noted that the
veteran had a history of a fractured right index finger in
1979 with no complications and full range of motion. On a
May 1974 examination, the appellant did not report having any
problems with his right index finger. On a September 1975
periodic non-flying examination, the prior history of a
history of a fractured right index finger in 1959 with no
complications and full range of motion, was again noted. On
a November 1976 examination, the appellant did not report
having any problems with his right index finger. On a July
1977 examination, the appellant did not report having any
problems with his right index finger. On an August 1978
examination, the appellant did not report having any problems
with his right index finger. On a June 1979 periodic non-
flying examination, the prior history of a history of a
fractured right index finger in 1979 with no complications
and full range of motion, was again noted. On a June 1980
examination, the appellant did not report having any problems
with his right index finger. On an August 1981 examination,
the appellant did not report having any problems with his
right index finger. On a July 1983 periodic non-flying
examination, it was noted that the appellant had a well-
healed fracture of the right index finger, no complications,
no sequelae (NCNS) with no limitation of range of motion.
In September 1983, the appellant suffered a small crush
injury to the index finger of the right hand. There was a
laceration of the medial aspect of the middle and distal
phalanx. The wound was dressed and treated. The appellant
was returned back to duty. On a May 1987 examination,
physical examination of the upper extremities was normal.
The appellant denied having any specific medical problems.
On an October 1991 periodic non-flying examination, physical
examination of the upper extremities was normal. The
appellant denied having any specific medical problems. The
remainder of the service treatment records do not reflect any
complaints, findings, treatment or diagnosis of a right index
finger disability. The appellant served in the National
Guard through April 21, 1994.
The appellant testified at an RO hearing in August 2007. The
appellant asserted that he fractured his right index finger
in 1959, but he did not "break it." He thereafter
fractured the finger in boot camp in the slide of an M-1
rifle. His finger was stitched at that time. The appellant
testified at a Board hearing in November 2008. With regard
to his right hand, the appellant stated that he had an injury
to his right hand when he was changing a tire and the wrench
slipped. His hand was slammed against the tire. He went to
the dispensary and was treated.
As noted, with regard to the period of active service from
February 20, 1960 to August 19, 1960, the Board notes that
there are no medical records. An appellant is considered to
have been in sound condition when examined, accepted and
enrolled for service, except as to defects, infirmities, or
disorders noted at entrance into service, except where clear
and unmistakable evidence demonstrates that an injury or
disease existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. §§ 1111.
A preexisting injury or disease will be considered to have
been aggravated by service where there is an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. §
3.306.
When no preexisting condition is noted upon entry into
service, the appellant is presumed to have been sound upon
entry. The burden then falls on the government to rebut the
presumption of soundness by clear and unmistakable evidence
that the veteran's disability was both preexisting and not
aggravated by service. The government may show a lack of
aggravation by establishing that there was no increase in
disability during service or that any "increase in
disability [was] due to the natural progress of the"
preexisting condition. 38 U.S.C. § 1153. If this burden is
met, then the appellant is not entitled to service-connected
benefits. Aggravation may not be conceded where the
disability underwent no increase in severity during service
on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §
3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).
A pre-existing disease or injury will be presumed to have
been aggravated by service only if the evidence shows that
the underlying disability underwent an increase in severity.
Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. §
3.306(a). In contrast, a flare-up of symptoms, in the
absence of an increase in the underlying severity, does not
constitute aggravation of the disability. Hunt v. Derwinski,
1 Vet. App. 292, 296-97 (1991). Evidence of the appellant
being asymptomatic on entry into service, with an
exacerbation of symptoms during service, does not constitute
evidence of aggravation. Green v. Derwinski, 1 Vet. App.
320, 323 (1991). If the disorder becomes worse during
service and then improves due to in-service treatment to the
point that it was no more disabling than it was at entrance
into service, the disorder is not presumed to have been
aggravated by service. Verdon v. Brown, 8 Vet. App. 529
(1996).
In July 2003, the VA General Counsel issued a precedent
opinion, which held that, to rebut the presumption of sound
condition under Section 1111 of the statute, VA must show by
clear and unmistakable evidence both that the disease or
injury existed prior to service and that the disease or
injury was not aggravated by service. VAOPGCPREC 3-03 (July
16, 2003). The appellant is not required to show that the
disease or injury increased in severity during service before
VA's duty under the second prong of this rebuttal standard
attaches. Id.
Although VA's General Counsel has determined that the
definition of "aggravation" used in 38 U.S.C.A. § 1153 and
38 C.F.R. § 3.306 does not apply in determining whether the
presumption of soundness has been rebutted, the statute and
regulation do not otherwise provide any definition of
"aggravation" to be applied in making that determination.
The word "aggravate" is defined as "to make worse."
Webster's II New College Dictionary (1999). After
determining whether the presumption of soundness has been
rebutted the Board will consider whether the claimed
disabilities were "made worse" by his military service.
As noted, appellants are presumed to have entered service in
sound condition as to their health. This presumption
attaches only where there has been an induction examination
in which the later complained-of disability was not detected.
See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The
regulation provides expressly that the term "noted" denotes
"[o]nly such conditions as are recorded in examination
reports," 38 C.F.R. § 3.304(b), and that "[h]istory of
preservice existence of conditions recorded at the time of
examination does not constitute a notation of such
conditions." Id. at (b)(1).
Thus, at the time of entry, there is a presumption that the
appellant entered in sound health. Here, there is no
evidence that at entry, there was any defect, infirmity, or
disorder with regard to a right index finger disability.
Thus, the appellant is entitled to a presumption of
soundness.
Because the appellant is entitled to a presumption of
soundness, the Board must determine whether, under 38
U.S.C.A. § 1111, the presumption of soundness is rebutted by
clear and unmistakable evidence. The burden of proof is on
VA to rebut the presumption by producing clear and
unmistakable evidence that a disability existed prior to
service and that it was not aggravated during service. See
Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004);
VAOPGCPREC 3-03 (July 16, 2003).
In Wagner the Court established that the burden falls on the
government to rebut the presumption of soundness by clear and
unmistakable evidence that the disability was both
preexisting and not aggravated by service. The government
may show a lack of aggravation by establishing that there was
no increase in disability during service or that any increase
in disability was due to the natural progress of the
preexisting condition. 38 U.S.C.A. § 1153. Wagner v.
Principi, 370 F.3d 1089 (2004).
In Miller v. West, 11 Vet. App. 345, 348 (1998), the Court
indicated that "a bare conclusion, even one written by a
medical professional, without a factual predicate in the
record does not constitute clear and unmistakable evidence
sufficient to rebut the statutory presumption of soundness."
The Court held that the presumption of soundness upon entry
into service may not be rebutted without "contemporaneous
clinical evidence or recorded history" in the record.
In this case there was, however, a "factual predicate in the
record;" the National Guard records repeatedly documented
that the appellant injured his right finger in 1959. In
addition, at his August 2007 hearing, the appellant admitted
that he had previously fractured that finger prior to his
service in 1960.
Thereafter, the Federal Circuit Court of Appeals for the
Federal Circuit (Federal Circuit) explained the Miller
decision by noting that "[n]othing in the court's opinion
suggests that without such evidence the presumption can never
be rebutted," emphasizing that any such determination must
consider "how strong the other rebutting evidence might
be." Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir.
2000). The Federal Circuit held that contemporaneous
evidence of treatment is not required to rebut the
presumption of soundness. In Harris the Federal Circuit
found that all medically accepted evidence can be considered,
including a recorded medical history. The medical notations
documented in the service treatment records are, therefore,
probative of the preexisting right index finger fracture in
1959.
In sum, in this case, the service treatment records recorded
a history of a preservice right index finger fracture in
1959. In addition, the appellant has admitted that history.
The Court has held that, as a matter of law, the presumption
of soundness is rebutted by clear and unmistakable evidence
consisting of the veteran's own admission of a preservice
history of medical problems during inservice clinical
examinations. Doran v. Brown, 6 Vet. App. 283, 286 (1994).
The Board finds that the medical records and the appellant's
statements are competent evidence that a right finger
fracture clearly and unmistakably preexisted service. See
Gahman v. West, 12 Vet. App. 406 (1999).
The Board finds that the probative evidence constitutes clear
and unmistakable evidence that a right finger injury (a
fracture) existed prior to service entrance. However,
VAOPGCPREC 3-03 (July 16, 2003), has established that there
are two steps to rebut the presumption of soundness at entry.
First, there must be clear and unmistakable evidence that the
injury preexisted service. Second, there must be clear and
unmistakable evidence that the injury was not aggravated
during service. If both prongs are not met, the presumption
of soundness at entry is not rebutted.
The Board finds that there is clear and unmistakable evidence
demonstrating that the preexisting right index finger
fracture was not aggravated by service. Although the service
treatment records are not available for the period of active
duty, the National Guard records repeatedly noted that while
the appellant had fractured the right index finger in 1959,
there was no limitation of motion, no complications, and no
sequalae. In sum, no residual disability was present. Thus,
while the appellant fractured his right index finger prior to
service, that injury left no residual impairment. The period
of active duty did not include any reinjury or problem
involving the right index finger, by the appellant's own
admission. The right index finger remained asymptomatic when
the appellant entered the National Guard. Thus, there is no
evidence of any worsening whatsoever of the preexisting right
index finger fracture during the appellant's short period of
active duty in 1960.
Where there is evidence of the appellant having been
asymptomatic on entering service, and later developing
symptoms of the pre-existing disorder, this does not
constitute aggravation in the absence of evidence of an
increase in the underlying disorder. Davis v. Principi, 276
F.3d 1341, 1345 (Fed. Cir. 2002). However, as noted, there
is no evidence that the appellant ever developed any symptoms
or that there was any increase in severity of the right index
finger fracture.
The Board therefore finds that there was no aggravation of
the preexisting right index finger fracture during the period
of active duty in 1960. The Board finds that the preservice
right index finger fracture did not undergo an increase in
severity during active duty service in 1960.
The Board finds that there is clear and unmistakable evidence
that the preexisting right index finger fracture was not
aggravated by active duty service in 1960. Accordingly,
because there is clear and unmistakable evidence that the
right index finger fracture preexisted service and clear and
unmistakable evidence that it was not aggravated during
service, the presumption of soundness is rebutted.
See Wagner.
As to a determination under 38 U.S.C.A. § 1153 and 38 C.F.R.
§ 3.306 of whether the appellant's preexisting right index
finger fracture was aggravated in service, the Board finds
that there is no competent medical evidence that there was
any worsening during active duty service in 1960. The Board
relies on the evidence as outlined above to support this
determination. Further, since there is clear and
unmistakable evidence that pre-existing right finger fracture
was not aggravated during active duty service in 1960 for the
purpose of rebutting the presumption of soundness (38
U.S.C.A. § 1111), it necessarily follows that the right
finger fracture was not, in fact, aggravated during active
duty service in 1960 (38 U.S.C.A. § 1110). The Board has
found by clear and unmistakable evidence that the appellant's
right finger fracture was not aggravated by active duty
service in 1960 in order to rebut the presumption of
soundness. VA's General Counsel found that such a finding
would necessarily be sufficient to rebut the presumption of
aggravation under 38 U.S.C.A. § 1153 and 38 C.F.R. §
3.306(b).
With respect to his periods of ADT and IDT, as noted, the
appellant is not entitled to the presumption of sound
condition at entrance to service and the presumption of
aggravation during service of preexisting diseases or
injuries which undergo an increase in severity during
service. 38 U.S.C.A. § 1111, 1153; 38 C.F.R. § 3.306, 3.307.
The fact that a claimant may have established status as a
veteran for purposes of other periods of service (in this
case, the prior period of active duty in 1960) does not
obviate the need to establish such status for purposes of the
period of ADT or IDT, where, as here, the claim for benefits
is premised on that period of ADT or IDT. Mercado-Martinez
v. West, 11 Vet. App. 415, 419 (1998). The Court has
interpreted the provisions of 38 U.S.C.A. § 101(24) as
meaning that ADT will not be considered "active military,
naval or air service" unless the claimant has previously
established service connection for a disability incurred in
such service. See Paulson v. Brown, 7 Vet. App. 466, 470
(1995); see also Biggins, supra.
In this regard, the Board notes that, while the appellant
achieved the status of "veteran" by virtue of his period of
active duty in 1960, that is his only period of active
service. For his periods of ADT, he has not established that
he was disabled from an injury or disease incurred in or
aggravated in the line of duty during any such period (as
indicated below, his claim for service connection for a
myocardial infarction is also denied). Likewise, for his
periods of IDT, the appellant has not established that he was
disabled resulting from an injury incurred in or aggravated
in the line of duty during any such period (as indicated
below, his claim for service connection for a myocardial
infarction is also denied). As noted above, the presumption
of soundness does not apply to any periods of ADT or IDT, by
virtue of the fact that the appellant has not previously
established active service status for any of the Reserves
periods in question.
Thus, at the outset, the Board determines that the
presumption of soundness does not apply in this case for the
periods of ADT and IDT because the appellant has not
previously established his status as a veteran for his
periods of ADT and/or IDT; that is, he has not previously
been found to have a service-connected disability.
Moreover, with regard to the issue of service connection for
a right index finger disability, as set forth in detail
above, the appellant had a preexisting right index finger
fracture when he entered his National Guard service, just as
he had had a preexisting right index finger fracture when he
entered his prior period of active duty, as established by
the service treatment records as well as his own testimony.
During the periods of ADT and IDT, the record reflects that
the appellant reinjured his right index finger. The
appellant testified that he alternatively injured his right
index finger during basic training in an incident involving a
gun and/or he injured the right index finger while changing a
tire. The service treatment records reflect that in
September 1983, the veteran suffered a small crush injury to
the index finger of the right hand. There was a laceration
of the medial aspect of the middle and distal phalanx. The
injury was treated and the appellant was returned back to
duty. Thereafter, the appellant was examined on more than
one occasion. His upper extremities were normal. The
appellant denied having any specific medical problem with his
right hand. The remainder of the service treatment records
do not reflect any complaints, findings, treatment or
diagnosis of a right index finger disability.
In light of the foregoing, the Board finds that there was no
inservice aggravation during the appellant's National Guard
service. Although he reinjured the right index finger, the
Board notes that the injury was treated, he was quickly
returned to duty, he received no further treatment, he made
no further complaints, and no further symptoms were shown
during service. In fact, physical examination yielded only
normal findings. As such, the Board finds that there is no
competent medical evidence that there was any worsening of
the preexisting right index finger fracture during the
appellant's periods of ADT and/or IDT. The Board further
finds that the preexisting right finger fracture was not, in
fact, aggravated during ADT and IDT service.
In sum, the appellant's preexisting right index finger
disability was not aggravated during either active duty or
ADT or IDT duty. The appellant does not have a separate
right index finger disability attributable to any period of
service. Thus, service connection is denied.
In reaching this decision, the Board has considered the
doctrine of doubt; however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Myocardial Infarction
It is not contended by the appellant that he had heart
disease or injury during his short period of service in 1960.
Rather, the appellant asserts that he had a heart attack
while on a period of ADT or IDT.
The veteran served in the National Guard through April 21,
1994. Only service department records can establish if and
when a person was serving on active duty, ADT, or IDT.
Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service
department records are binding on VA for purposes of
establishing service in the United States Armed Forces. Duro
v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R.
§ 3.203, defining the type of evidence accepted to verify
service dates.
On April 30, 1994, after the appellant was discharged, he
suffered a heart attack and needed surgical intervention. He
underwent a dissection of the ascending aorta, the arch, and
the descending aorta with extension into the great vessels
and acute aortic insufficiency with aortic insufficiency due
to chronic fenestration and undermining of one of the
commissures.
The records reflect that on May 4, 1994, it was indicated in
the appellant's records that the appellant sustained an acute
myocardial infarction 5 weeks ago which resulted in double
bypass surgery performed by J.M.W., M.D. The veteran also
had a mechanical heart valve placement.
In a June 6, 1994 letter, J.M.W., M.D., stated that the
veteran had undergone emergent replacement of his ascending
aorta, aortic valve replacement, and two vessel coronary
artery bypass surgery on April 30, 1994.
Post-service VA records dated in 2006-2007 show continued
treatment for cardiovascular disability including coronary
artery disease.
The appellant testified at an RO hearing in August 2007. The
appellant testified that he had a heart attack the last day
in April in 1994 (April 30, 1994). The appellant related
that he had been called up for Desert Storm, but did not get
any further than Oklahoma City. He stated that he was not on
active duty when he had the heart attack.
The appellant testified at a Board hearing in November 2008.
At that time, he essentially indicated that he began having
heart symptoms prior to his heart attack on April 30, 1994.
The appellant asserted that he was on active duty orders in
the weeks preceding the heart attack when he had these
symptoms which included bad indigestion. He indicated that
he was scheduled to go to Singapore and was driving down the
road on the last day in April, when the heart attack
occurred. When he received medical attention, the medical
personnel asked his children what kind of work he had been
doing (fixing airplanes) and noted that he had been under
serious stress.
The records shows that the appellant was not on ADT or IDT
when he suffered the heart attack. He was no longer
performing any service. Although a medical record indicated
that the myocardial infarction occurred 5 weeks before May 4,
1994, this record is inaccurate. This record is contradicted
by the surgical report which reflects that the myocardial
infraction occurred on April 30, 1994. The appellant himself
admits that this is when the myocardial infarction occurred.
The Board finds that the probative value of the May 4, 1994
record is outweighed by the surgical report which very
clearly shows that the appellant's medical state of having a
heart attack necessitated heart surgery on a different date
than indicated in the May 4, 1994 record.
The appellant basically asserts that the heart disease began
while on a period of ADT or ADT; however, the record does not
show that this was the case. There is no supporting evidence
that heart disease began during ADT. The records are
negative in that regard. On all of the appellant's National
Guard examinations, including numerous periodic non-flying
examinations, his heart evaluation was normal and he did not
report any symptoms. He denied having pain or pressure in
the chest, palpitation or pounding heart, heart trouble,
and/or high or low blood pressure. The May 4, 1994 record
has been found to be inaccurate in its history and is not
probative on that point. Further, although it was determined
by the RO that the appellant served on IDT on April 9th and
10th, of 1994, which preceded the heart attack, even if he
had symptoms, as he contends, of heart disease, heart disease
is not an "injury" for the purpose of service connection
based on IDT service. Rather, only the myocardial attack
itself qualified as an "injury" for that purpose.
In addition, to the extent that the appellant had heart
disease within one year of his discharge from National Guard
service, as previously indicated above at length, the
presumptive provisions do not apply to ADT and IDT service.
Thus, service connection is denied. In reaching this
decision, the Board has considered the doctrine of doubt;
however, as the preponderance of the evidence is against the
appellant's claim, the doctrine is not for application.
ORDER
Service connection for a right index disability is denied.
Service connection for residuals of a myocardial infarction
is denied.
____________________________________________
S. BUSH
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs